Opinion
No. 3-086 / 02-0942.
Filed April 30, 2003.
Appeal from the Iowa District Court for Clinton County, NANCY S. TABOR, Judge.
A father appeals from a district court ruling placing his son in the physical care of his mother. AFFIRMED.
Eric Borseth of Borseth, Genest Siebrecht Law Office, Altoona, for appellant.
Mary Wolfe of Wolfe Law Office, Clinton, for appellee.
Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Todd Tubbs appeals a district court ruling placing physical care of his son Brandon with the child's mother. We affirm.
I. Background Facts and Proceedings
Melinda Cochran and Todd Tubbs are the unmarried parents of Brandon, born in 1998. The parties lived together intermittently before the birth of their son and for approximately two years after his birth.
Following their separation, Tubbs filed a petition to establish custody, visitation, and support. The district court concluded that although both parents were suitable caretakers, Cochran should have physical care of Brandon. The court ordered liberal visitation and provided a visitation schedule in the event the parties were unable to agree.
Tubbs filed a motion pursuant to Iowa Rule of Civil Procedure 1.904. The district court denied most of his requested changes, including his request for overnight midweek visitation and extended telephone contact. Tubbs appealed. Review of the district court's ruling on physical placement and visitation is de novo. Iowa R.App.P. 4.
II. Physical Care
The district court declined to award Tubbs physical care of Brandon in light of what the court characterized as his history of domestic abuse against Cochran. Tubbs contends this finding is not supported by the record. We disagree.
"Domestic abuse" is assault as defined in Iowa Code section 708.1 (2001) "between persons who are parents of the same minor child, regardless of whether they have been married or have lived together at any time." Iowa Code § 236.2(2)(c). Assault includes
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
Iowa Code § 708.1 (2001). Under the child custody provisions governing this case, "if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint custody exists." Iowa Code § 598.41(1)(b). An unrebutted finding of a history of domestic abuse "shall outweigh consideration of any other" specified factor in awarding physical care. Iowa Code § 598.41(2)(c).
Cochran testified she experienced domestic abuse at the hands of Tubbs two or three times a month. On one occasion, when Tubbs was taking her to work, he pulled up to the employment site and, as Cochran opened the door, he grabbed her arm and tried to push her out. He then got out of the car, grabbed Cochran around the jaw, and pushed her towards the ground. According to Cochran, on other occasions,
He would grab me around my jaw. He would take me by my shoulders and shake me, push me back on the bed, hold me up against the wall so I couldn't go. He's grabbed both sides of my face so I couldn't move.
She stated these incidents sometimes resulted in bruising. Finally, she testified that, when Brandon witnessed the incidents, he "would start crying" and would "scream for Mommy."
We find this evidence sufficient to support the district court's finding of a history of domestic abuse.
Tubbs next argues he rebutted the presumption that he was unfit to have physical care by establishing: 1) Cochran is a smoker, 2) Cochran lives in an unstable and abusive environment, 3) he served as primary caretaker, and 4) he was more attentive to Brandon's educational needs.
We find the first issue the most troubling. Brandon has asthma and significant health problems. Cochran conceded she, as well as her new husband, are regular smokers. She further admitted to smoking on an enclosed porch in the winters. However, she acknowledged the harms of second-hand smoke, did not smoke around Brandon, and did not allow others to do so. We conclude this factor is insufficient to rebut the presumption against Tubbs.
We also are not convinced that the second factor cited by Tubbs is sufficient to rebut the presumption. Although the record contains evidence of altercations between Cochran and her father, there is no evidence he abused Brandon. In fact, Cochran testified that, on the occasions Brandon was with his grandfather, it was "hard to get Brandon to leave."
As for Tubbs's caretaking, we agree he played an active role in raising Brandon during the first two years of his life. Tubbs admitted, however, that at the time of trial, Cochran was caring for Brandon about the same number of hours per day as he was.
Finally, we believe Tubbs's concern that Cochran will not promote Brandon's educational needs is unfounded. As the district court stated, "[t]here was no evidence presented that Melinda does not have the same aspirations for the child" despite her decision to forego a college education.
We conclude the district court acted equitably in awarding Cochran physical care of Brandon.
III. Visitation
The district court ordered visitation on Wednesday evenings, beginning at 2.p.m. and ending at 7 p.m., in addition to visitation every other weekend. Tubbs contends the district court should have provided 1) more frequent visitation during the week, 2) midweek overnight visitation, 3) visitation on certain holidays, and 4) expanded telephone visitation.
The district court cogently explained its reasons for imposing the schedule it did. The court also specifically noted that the parties were free to mutually agree to additional visitation. We see no reason to modify this portion of the court's ruling. In re Marriage of Mrkvicka, 496 N.W.2d 259, 260-61 (Iowa Ct.App. 1992).
IV. Appellate Attorney Fees
Melinda requests appellate attorney fees in the amount of $1000. An award rests within our discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We are not convinced that the parties' relative financial positions or the merits of the litigation warrants an award in this case.
AFFIRMED.
Miller, J., concurs; Mahan, P.J., specially concurs.
I concur specially. I agree with the decision reached by the majority. However, I feel the smoking situation is much more serious than portrayed by the mother. If second-hand smoke results in continued health problems for this child, a modification of physical care may be appropriate in the future.